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Memo in Support of Plaintiffs’ Motion for Summary Judgment Case No. 3:13-cv-01435-WGH-KSC

Thor O. Emblem CSBN 141880Tracy L. Emblem CSBN 145484LAW OFFICES OF THOR O. EMBLEM205 W. Fifth Ave., Ste 105Escondido, CA 92025Telephone: (760) 738-9301Facsimile: (760) 738-9409

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

TIFFANY L. (HAYES) AGUAYO, etal.,

Plaintiffs,

v.

SALLY JEWELL, et al.,

Defendants.

)))))))))))

Case No. 3:13-cv-01435-WQH-KSC

PLAINTIFFS’ MEMORANDUM INSUPPORT OF PLAINTIFFS’SUMMARY JUDGMENT MOTION

DEPT: 13 AJUDGE: William Q. Hayes

Case 3:13-cv-01435-BAS-KSC Document 54-1 Filed 01/10/14 of 32

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TABLE OF CONTENTS

INTRODUCTION 1

BACKGROUND FACTS 3

A. Plaintiffs’ Enrolled Membership 3

B. The Pala Band EC’s Authority 4

C. The EC’s Disenrollment of Plaintiffs 6

JURISDICTION 7

REVIEW STANDARD 8

I. I. THE BIA IS LEGALLY BOUND TO HONOR THE 1989 9FINAL AS-IA DECISION BETWEEN GOVERNMENTS.

II. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION 13THAT 28 U.S.C. SECTION 2401a THE 6-YEAR STATUTE OFLIMITATIONS APPLIES.

III. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION 16TO RECOGNIZE THE PALA BAND’S 1997 CONSTITUTION AS “EFFECTIVELY” ADOPTED BECAUSE THE FINDING ISARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW.

A. The AS-IA’s finding that assumed “elections” and “meetings” 16were interchangeably held based on the Band’s past customs and traditions was made without making a factual inquiry and was therefore an abuse of discretion.

B. The AS-IA’s finding that the Pala Band “effectively” voted 18to adopt the 1997 Constitution is arbitrary, capricious, and an abuse of discretion in light of the Pala Band’s admission to the NIGC, a federal agency in 1999, that it was operating under Articles of Association, and in light of its admission on its public website in 2012 that it is governed by Articles of Association.

C. The AS-IA abused his discretion and reached a conclusion 19that runs counter to the plain meaning of “Elections” a term defined separately from the definition of “Meetings” in the Pala Band’s Articles of Association and the challenged 1997Constitution.

D. The AS-IA abused his discretion in finding “there were 20two votes on the adoption of the Constitution.”


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TABLE OF CONTENTS, cont.

IV. THE 2009 REVISED ENROLLMENT ORDINANCE CANNOT 23BE APPLIED TO PLAINTIFFS UNDER THE PLAIN MEANING RULE AND AS A MATTER OF LAW.

V. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION 24TO REJECT JOINDER OF MINORS JOSEPH AND KALEY RAVAGO AS PARTIES IN THE AS-IA DECISION BECAUSE THEY ARE SIMILARLY SITUATED AND THE AS-IA’S DECISION IS ARBITRARY.

CONCLUSION 25


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TABLE OF AUTHORITIES

Cases

Astoria Federal S. & L. Assn. v. Solimino 9501 U.S. 104 (1991) Bennett v. Spear 8520 U.S. 154 (1997)

Bonnichsen v. U.S. 16367 F.3d 864 (9th Cir. 2004)

Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc. 18419 U.S. 281 (1974)

Cabazon Band of Mission Indians v. City of Indio 14694 F.2d 634 (9th Cir. 1982)

California v. Cabazon Band of Mission Indians 22480 U.S. 202 (1987)

California Valley Miwok Tribe v. Jewell 21 --- F.Supp.2d ---- (2013) WL 6524636 (D.D.C. 2013)

California Valley Miwok Tribe v. United States 21515 F. 3d 1262 (D.C. Cir. 2008)

Chilkat Indian Village v. Johnson 23870 F.2d 1469 (9th Cir. 1989)

Citizens to Preserve Overton Park v. Volpe 8, 9401 U.S. 402 (1971)

Conner v. U.S. Dept. of the Interior 1573 F.Supp.2d 1215 (D. Nev. 1999)

Earth Island Institute v. Hogarth 9494 F.3d 757 (9th Cir. 2007)

Environmental Def. Ctr., Inc. v. EPA 8-9344 F. 3d 832 (9th Cir. 2003)

Friends of the Earth v. Hintz 16, 17800 F.2d 822 (9th Cir.1986)

Friends of Yosemite Valley v. Norton 8348 F.3d 789 (9th Cir. 2003)

Gila River Indian Community v. U.S. 19, 23-24729 F.3d 1139 (9th Cir. 2013)

Goodface v. Grassrope 8708 F. 2d 335 (8th Cir. 1983)


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TABLE OF AUTHORITIES, cont.

Cases, cont.

Greater Yellowstone Coalition v. Lewis 16628 F.3d 1143 (9th Cir. 2010)

Hopi Indian Tribe v. Commr 19, 234 IBIA 134 (1975)

Kettle Range Conservation Group v. U.S. Forest Service 16, 17148 F.Supp.2d 1107 (E.D.Wash.2001)

Latino Issues Forum v. EPA 8558 F. 3d 936 (9th Cir. 2009)

Lujan v. Defenders of Wildlife 15504 U.S. 555 (1992)

Milam v. United States Dept of Interior 2210 I.L.R. 3013(1982)

Miller v. County of Santa Cruz 1239 F. 3d 1030 (9th Cir. 1994)

Murray v. Alaska Airlines, Inc. 1250 Cal.4th 860 [237 P. 3d 565] (2010)

Morris v. Watt 20, 23640 F.2d 404 (D.C.Cir.1981)

Natural Resources Defense Council v. U.S. Forest Service 9421 F.3d 797 (9th Cir. 2005)

Nichols v. Rysavy 14809 F. 2d 1317 (8th Cir. 1987)

Oregon Natural Desert Ass’n v. U.S. Forest Serv. 8 465 F.3d 977 (9th Cir. 2006)

Parklane Hosiery Co. v. Shore 10, 14439 U.S. 322 (1979)

Plaine v. McCabe 9, 10, 13797 F.2d 713 (9th Cir. 1986)

Petroleum Communications, Inc. v. F.C.C. 2422 F.3d 1164 (D.C. Cir.1994)

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am 18v. U.S. Dep’t of Agric. 415 F. 3d 1078 (9th Cir. 2005)

Santa Clara Pueblo v. Martinez 12436 U.S. 49 (1978)


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Cases, cont.

Seminole Nation v. United States 13, 21, 23316 U.S. 286 (1942)

Seminole Nation of Okla. v. Norton 22223 F. Supp. 2d 122 (D.D.C. 2002)

Sohappy v. Hodel 9911 F.2d 1312 (9th Cir. 1990)

United States v. Utah Constr. & Mining Co. 9, 11384 U.S. 394 (1966)

University of Tennessee v. Elliott 9478 U.S. 788 (1986)

Vedolla v. Acting Regional Director 743 IBIA 151 (2006)

Wilderness Watch, Inc. v. U.S. Fish and Wildlife Service 8 629 F.3d 1024 (9th Cir. 2010)

Wind River Mtn. Corp. 14, 15946 F.2d 710 (9th Cir. 1991)

Statutes

5 U.S.C. § 551(7) 10

5 U.S.C. § 701 9, 12

5 U.S.C. § 702 7, 8

5 U.S.C. § 704 2

5 U.S.C. § 706 12

5 U.S.C. § 706(2) 7, 8

5 U.S.C. § 706(2)(A) 9

25 U.S.C. § 2 2, 9, 22

25 U.S.C. § 479 11, 13

28 U.S.C. § 1331 7, 8

28 U.S.C. § 2401a 7, 9 14

Federal Regulations

C.F.R. 2.8 6


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Federl Regulations, cont.

C.F.R. 2.9 7

C.F.R. 4.330(b)(1) 7


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1 The term “AS-IA” refers to the Assistant Secretary- Indian Affairs. The term“BIA” refers to the Bureau of Indian Affairs. The term “APA” refers to theAdministrative Procedures Act. The term “Pala Band” refers to the Pala Band ofMission Indians. The term “EC” refers to the Pala Band’s six member ExecutiveCommittee. The term “general council” refers to adult voting tribal members on thefederally recognized roll.

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PLAINTIFFS submit the following Memorandum in support of Plaintiffs’

Summary Judgment Motion.

INTRODUCTION1

Terminating tribal membership of a federally enrolled tribal member is like

terminating citizenship. It strips an individual of his or her identity, heritage, rights

and federally funded benefits which flow from federal recognition of membership on

a federally recognized Indian roll. Plaintiffs have been federally recognized tribal

members enrolled pursuant to a September 1989 final agency decision which became

binding between governments.

Subsequent to that decision, the Pala Band’s EC began drafting a new

Constitution for the Band. In February 2012, the EC terminated Plaintiffs benefits as

federally recognized members under a revised enrollment ordinance the EC enacted

pursuant to its authority granted by a 1997 Constitution, which approval by Regional

was forwarded to the Band’s Chairman in October 2000. By letter dated February 3,

2012, the Pala Band’s EC invited Plaintiffs to appeal this action to the BIA Regional.

Plaintiffs appealed to the BIA alleging the original enrollment ordinance which was

to be given final and conclusive effect applied, and that the 1997 Constitution was

not legitimately passed by the Band as a whole. Plaintiffs further appealed alleging

the BIA was required by law to honor the AS-IA’s 1989 final decision under the

collateral estoppel doctrine.

During the months following March 5, 2012, when Plaintiffs first filed their

lawsuit in this Court, Case No. 3:13-cv-00551-WQH-KSC, Plaintiffs suffered

egregious harm while the BIA and the AS-IA remained silent and failed to exercise

the government’s trust responsibility. The BIA allowed the six-member EC to


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deprive Plaintiffs of their federal benefits flowing from federal recognition of their

Indian status. No where in America would a person be stripped of their citizenship

status, rights and benefits without an order preserving their citizenship status while an

appeal to the government was pending. In the BIA’s eyes, without a federal court

order requiring the government to perform its official duty, the BIA had no obligation

to Plaintiffs at all other than to issue a “recommendation.”

In November 2012, after months in litigation, the AS-IA agreed in district court

that it would review Plaintiffs’ appeal to the AS-IA dated July 2, 2012. However, the

procrastination continued while the AS-IA failed to take any action to preserve the

Plaintiffs’ status quo as federally enrolled tribal members. Plaintiffs were forced to

file a second lawsuit, Case No. 3:13-cv-00705-WQH-KSC on March 24, 2013. The

AS-IA then agreed that Plaintiffs should remain on the federal maintained roll and not

be removed, and further agreed that the AS-IA would review the case and issue a

written decision on a date certain, in return for dismissal of this case.

On June 12, 2013, after sixteen months, the AS-IA issued his decision which

reasoning is speculative, arbitrary and contrary to law. The AS-IA decision holds a

2009 revised enrollment ordinance adopted by the EC pursuant to authority granted in

the 1997 Constitution controlling even though the Band as a whole never adopted the

Constitution. Enforcement of these documents violates the government’s general trust

obligation to Plaintiffs who are federally recognized Indians. Under its broad

authority to manage Indian affairs (25 U.S.C. § 2), and under federal law, the BIA

had an absolute duty of trust to the Plaintiff tribal members to enforce the final

binding agency decision rendered between governments. The 1989 final AS-IA

decision regarding Margarita Britten’s 4/4 Cupa blood quantum decision was not

appealed by the Pala Band’s EC.

By filing the instant summary judgment motion, Plaintiffs seek a declaratory

relief order that the AS-IA’s June 12, 2013 decision be reversed as a matter of law

with instructions.


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BACKGROUND FACTS

A. Plaintiffs’ Enrolled Membership. Plaintiffs are descendants of

Margarita Britten, identified on the Pala Band’s allotment roll in 1913 as 4/4 degree

Pala Indian. (AR 2160-2162). On November 6, 1960, the Pala Band officially adopted

the Pala Band Articles of Association (AR 2097-2103), previously approved by the

Commissioner of Indian Affairs on March 7, 1960. (AR 2104). The Articles of

Association provided that the General Council of the Pala Band had the authority to

enact tribal ordinances “governing future membership, loss of membership and

adoption of members into the Band.” (AR 2100). On March 19, 1961, the General

Council enacted Ordinance No. 1, which delegated to the United States the authority

to approve or deny tribal membership determinations made by the Executive

Committee of the Pala Band. The decisions of the Secretary under that ordinance

were to be given “final and conclusive” effect. Ordinance No. 1 became effective on

November 26, 1961. (AR 2116-2119).

On May 17, 1989, the AS-IA issued a written decision to one of Margarita

Britten’s descendants that Margarita Britten’s descendants could enroll on the basis

that their ancestor was 4/4 Cupa Indian blood quantum. (AR 2164-2166).

The Band’s EC was notified of the AS-IA’s decision that Margarita Britten was

determined by Washington Central (after an appeal) to be 4/4 Cupa Indian by letter

from the BIA dated June 7, 1989. (AR 331).

Thereafter, the Band wrote a letter dated July 27, 1989 to the AS-IA protesting

the AS-IA’s decision that Margarita Britten was 4/4. However, the AS-IA received no

additional evidence. Thereafter, on September 11, 1989, the AS-IA advised the Band

that the agency’s findings were carefully and methodically outlined in the May 17,

1989 decision, that the agency explicitly identified documentation for the decision,

and that the decision was final. (AR 2168-2169).

Elsie Lucero who was employed as enrollment specialist for the Southern

California Bureau of Indian Affairs and who was responsible for reviewing the Pala


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Band’s membership, met with the Band’s EC and provided the committee with

documentation, findings and tree charts supporting the AS-IA’s decision. (AR 2173).

B. The Pala Band EC’s Authority.

On December 19, 1994, the Pala Band sent a letter to the Superintendent of the

BIA which stated: “This is to certify that on November 22, 1994, at the Tribal

elections for the Pala Band of Mission Indians, it was voted to accept the new

Constitution for the Pala Band. The vote was Yes 131, No 65.” (AR 2121). The letter

was signed by the “Chairperson” and three members of an “Election Committee.”

On June 16, 1995, the Acting Superintendent of the BIA Southern California

Agency sent a letter to the Area Director of the BIA Sacramento Area Office which

stated in part:

Forwarded for your review and subject to Area Director’s approval is theoriginal Constitution of the Pala Band. The revised document was adoptedthrough ballot vote on November 22, 1994. The Agency received the documenton March 21, 1995.

Please be further advised that a proposed draft of the revised Articles ofAssociation was submitted to the Agency on November 16, 1993. Review ofthat document was completed on December 30, 1993 and returned to the Bandwith recommendations for consideration.

Attached are Agency comments and/or recommendations. Agency withholds itsrecommendation for approval. (AR 2123).

On December 8, 1997, the BIA Southern California Agency received a certified

copy of Tribal Resolution No. 97-36. (AR 2137). Tribal Resolution No. 97-36 stated,

in part: NOW THEREFORE BE IT RESOLVED, that effective the twelfth day of

November, 1997 the Pala Band of Mission Indians, exercising our inherent rights as a

sovereign, federally-recognized Tribe, do hereby adopt the Pala Tribal Constitution to

supersede the Articles of Association which were approved by the Commissioner,

Bureau of Indian Affairs, on March 7, 1960. This is to certify that the above

resolution was passed at a duly call [sic] meeting of the Pala Band of Mission Indians

General Council held on the 19 day of November 1997, by a vote of 27 “For”, 0

“Against”, with a quorum present said resolution not having been rescinded or


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amended in any way. Id. The Pala Band’s Constitution states: “This Constitution

shall become effective immediately after its approval by a majority vote of the voters

voting at a duly called elections [sic] at which this Constitution is approved by the

Bureau of Indian Affairs.” (AR 2135).

On December 23, 1997, the BIA forwarded the revised Constitution to the

Pacific Regional Agency, BIA, noting the Constitution’s effective date requirement

as set forth in Article IX of the Constitution. (AR 2139). On July 26, 2000, the

Regional Director of the BIA with authority “redelegated” to him by the Assistant

Secretary of Indian Affairs, issued a Certificate of Approval for the revised

Constitution, which applied retroactively to the “adoption” of the Constitution on

November 12, 1997. (AR 2140). On October 4, 2000, the BIA sent a notification of

the certification of the revised Constitution to the Pala Band. (AR 2141). The

revised Constitution delegates to the EC of the Pala Band the authority to “amend

and/or replace its existing Enrollment Ordinance with an Ordinance governing

adoption, loss of membership, disenrollment, and future membership....” (AR 2127).

On July 22, 2009, the EC adopted a revised version of Ordinance No. 1. (AR

2149-2158). The six member EC derives its stated authority to unilaterally revise the

Band’s enrollment ordinance from the Pala Band’s Constitution approved by the

Bureau of Indian Affairs in November 1997. (AR 2149). The July 22, 2009

enrollment ordinance further contains a “Whereas” clause which states:

BE IT FURTHER RESOLVED, that the Executive Committee of the PalaBand, by adoption of this revised Ordinance does not intend to alter or changethe membership status of individuals whose membership has already beenapproved and who are currently listed on the membership roll of the Pala Bandof Mission Indians. (AR 2150).

Elsie Lucero was employed with the BIA during the period that the Band

allegedly adopted its Constitution and was responsible for reviewing the Band’s

membership. She states under penalty of perjury that the revised 1997 Constitution

was required to be ratified an election held by the Pala Band. She further states that

the Pala Band never submitted an agenda, meeting minutes of an election committee


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which adopted the revised Constitution, and rules regarding how each voting member

was to cast their votes, including absentee ballots for tribal members who do not live

on the reservation. (AR 93).

King Freeman, a past tribal chairman, signed many tribal documents including

Tribal Resolution No. 97-36 states that the term “election” in Article IX of the 1997

Constitution submitted to the Bureau of Indian Affairs for its approval meant

referendum election where the eligible voting members of the Pala Band, including

absentee ballot voters, would have been mailed a copy of the proposed Constitution

and would have been allowed to vote whether to adopt the 1997 Constitution as the

Band’s governing document to replace the Articles of Association. According to

custom and tradition, the 1997 Constitution would have had to be sent to the entire

voting membership. He further states under penalty of perjury that a “referendum

election to adopt the 1997 Constitution never took place.” (Complaint, Exh 9, ECF

No. 1-1 at 51, emphasis added).

C. The EC’s Disenrollment of Plaintiffs. In February 2012, the Pala

Band’s EC sent letters to Plaintiffs that their Pala Band Indian status had been

terminated informing Plaintiffs to file an appeal with the BIA Regional within 30

days of the letter. (AR 2089). Plaintiffs appealed the EC’s decision to Regional.

(AR 2075-2189). On June 7, 2012, the Regional Director sent a letter to Plaintiffs

which stated that he would not consider the merits of their disenrollment dispute,

citing Ordinance 1 of the revised Constitution. The letter stated:

Requests for Regional Director review of the Band’s disenrollment decisionsare based on Section 8, Appeals of Eligibility Decision, of the Band’sEnrollment Ordinance dated July 22, 2009. Because the Band’s EnrollmentOrdinance does not invoke any provision of federal law that would provide theBureau of Indian Affairs with the authority to decide enrollment appeals, thereis no required federal action to take with regard to these requests, and wecannot render any decision regarding the Executive Committee's actions. TheRegional Director however recommended that Plaintiffs remain enrolled in thePala Band. (AR 2167).

On July 2, 2012, Plaintiffs appealed from the June 7, 2012 letter by filing a

Notice to Take Action, pursuant to 28 C.F.R. section 2.8, and a Notice of Appeal,


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pursuant to 25 C.F.R. section 2.9 with the Interior Board of Indian Appeals (“IBIA”)

and the Acting Assistant Secretary of Indian Affairs. (AR 1188-1273). In the

Statement of Reasons attached to the Notice of Appeal, Plaintiffs contend that the

Regional Director’s June 7, 2012 decision to interpret the unratified Constitution and

revised enrollment ordinance, as opposed to the Articles of Association, is arbitrary

and capricious on the grounds that the revised Constitution was not properly ratified

and a final decision on the blood quantum of Plaintiffs’ ancestor has been issued.

Plaintiffs were required to exhaust review with the AS-IA. On June 12, 2012,

the AS-IA Washburn issued a written decision as to Plaintiffs’ appeal. (AR 1-25).

On June 19, 2012, Plaintiffs filed their Complaint for declaratory relief in this Court.

Plaintiffs seek reversal of the AS-IA’s decision.

JURISDICTION

The IBIA does not have jurisdiction to review the AS-IA’s June 12,

2013, decision because it involves an appeal of a tribal membership decision. 43

C.F.R. 4.330(b)(1); Vedolla v. Acting Regional Director, 43 IBIA 151, 154, 156

(2006); see also AR 17, fn. 53.

This Court has jurisdiction under the Administrative Procedures Act to review

the AS-IA’s application of the collateral estoppel doctrine, federal law as it pertains

to AS-IA’s 1989 final decision. 28 U.S.C. § 1331 and/or 5 U.S.C. §§ 702, 704,

706(2). Additionally, the AS-IA’s action of finding review under a void ordinance

enacted pursuant to a void Constitution is final, nonappealable agency action, 5

U.S.C. § 704. This Court further has jurisdiction under the Administrative

Procedures Act (APA) to review the June 12, 2013 decision because it involves a

final determination as to Plaintiffs’ federal due process challenge that the BIA cannot

recognize/apply void tribal governing documents against Plaintiffs, federally enrolled

tribal members subject to a final decision. 28 U.S.C. § 1331 and/or 5 U.S.C. §§ 702,

704, 706 (2). This Court also has jurisdiction to review the AS-IA’s decision and

application of federal law, 28 U.S.C. § 2401a. 28 U.S.C. § 1331 and/or 5 U.S.C. §§


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702, 704, 706(2). This Court has jurisdiction under the Administrative Procedures

Act to review the AS-IA’s findings in the decision that are (a) not in accordance with

the law; (b) contrary to Plaintiffs’ constitutional right of due process; (c) unsupported

by substantial evidence, and (d) where the agency has not articulated a rational

connection between the facts found and the conclusions made. 28 U.S.C. § 1331

and/or 5 U.S.C. §§ 702, 704, 706(2).

There is no statute precluding APA judicial review of BIA actions. See

Goodface v. Grassrope, 708 F. 2d 335, 338 (8th Cir. 1983) “We know of no statute

precluding judicial review of BIA actions....” As argued infra, interpreting and

enforcing a void membership ordinance, ignoring a valid membership ordinance

which gives the Secretary final and conclusive authority over tribal membership, and

ignoring a final/conclusive agency decision which is binding between governments,

affects plaintiffs’ rights, and is a legal wrong. 5 U.S.C. § 702. The AS-IA’s decision

represents the consummation of the agency’s decision making process because it

determines rights and creates legal consequences. See Bennett v. Spear, 520 U.S.

154, 177-78 (1997); Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977,

982 (9th Cir. 2006).

REVIEW STANDARD

While the AS-IA’s decision is an agency decision which is entitled to a

presumption of regularity, “that presumption is not to shield his action from a

thorough, probing, in-depth review.” Citizens to Preserve Overton Park v. Volpe,

401, U.S. 402, 415 (1971). Administrative review must ensure that agency’s decision

is founded on a reasoned evaluation of “relevant factors.” See, Wilderness Watch,

Inc. v. U.S. Fish and Wildlife Service, 629 F.3d 1024, 1032 (9th Cir. 2010); Friends

of Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir. 2003).

An agency’s findings will only be upheld if the agency articulates a rational

connection between the facts found and the conclusions made. See Latino Issues

Forum v. EPA, 558 F. 3d 936, 941 (9th Cir. 2009); Environmental Def. Ctr., Inc. v.


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EPA, 344 F. 3d 832, 858 n.36 (9th Cir. 2003), cert. denied, 541 U. S. 1085 (2004). In

other words, a reviewing court must hold unlawful and set aside agency findings and

conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law. Sohappy v. Hodel, 911 F.2d 1312, 1317 (9th Cir. 1990); 5

U.S.C. §§ 701 et seq., 706(2)(A). “To make this finding the court must consider

whether the decision was based on a consideration of the relevant factors and whether

there has been a clear error of judgment.” Citizens to Preserve Overton Park v.

Volpe, supra, 401 U.S. 402, 416. A clear error of judgment exists when the agency’s

decision offers an explanation that runs counter to the evidence before the agency.

Natural Resources Defense Council v. U.S. Forest Service, 421 F.3d 797, 806 (9th

Cir. 2005).

The above review standards apply to the Court’s review of the AS-IA’s

findings of fact. The agency’s interpretation of the federal statute of limitations, 28

U.S.C. § 2401a, is reviewed de novo. Earth Island Institute v. Hogarth, 494 F.3d

757, 765 (9th Cir. 2007). The availability of collateral estoppel is a mixed question

of law and fact which the Court must review de novo. Plaine v. McCabe, 797 F.2d

713, 718 (9th Cir.1986).

I. THE BIA IS LEGALLY BOUND TO HONOR THE 1989 FINAL AS-IA DECISION BETWEEN GOVERNMENTS.

The collateral estoppel doctrine and the BIA’s management responsibility (25

U.S. C. § 2) requires the BIA to honor and enforce the agency’s 1989 final decision.

It is settled that the doctrine of collateral estoppel or issue preclusion is applicable to

final decisions of administrative agencies acting in a judicial or quasi-judicial

capacity. See Astoria Federal S. & L. Assn. v. Solimino, 501 U.S. 104, 107 (1991)

[extending the doctrine to the final adjudications of both state and federal agencies];

United States v. Utah Constr. Co., 384 U.S. 394, 421-422 (1966). The doctrine of

collateral estoppel, or issue preclusion, is firmly embedded in federal common law.

See also, University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) finding the rule


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of federal common law applies the policy of the Full Faith and Credit Clause to state

agency decisions. This doctrine is grounded on the premise that “once an issue has

been resolved in a prior proceeding, there is no further fact-finding function to be

performed.” Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 336, fn. 23.

Collateral estoppel has the dual purpose of protecting litigants from the burden of

relitigating an identical issue with the same party or his privy and of promoting

judicial economy, by preventing needless litigation. Id. at p. 326, fn. omitted.

The collateral estoppel doctrine applies if: (1) the issue necessarily decided at

the previous agency proceeding is identical to the one sought to be relitigated; (2) the

previous proceeding resulted in a final judgment on the merits; and (3) the party

against whom collateral estoppel is asserted was a party or in privity with a party at

the prior proceeding. Plaine v. McCabe, supra, 797 F.2d 713, 720. In a letter dated

June 7, 1989, the EC was notified that the Southern California Agency had been

directed by Washington Central to correct the blood degree of Margarita Britten’s

descendants due to Britten’s 4/4 status. (AR 331).

The term “adjudication” means the agency process for the formulation of an

order or decision. See 5 U.S.C. § 551(7). Washington Central thoroughly

investigated and conclusively substantiated Margarita Brittain’s full blooded Indian

status as stated on the typewritten 1913 allotment roll (AR 2160) and ordered the

Southern California Agency to correct all the blood degrees of her descendants which

order conferred eligibility in the Pala Band to Margarita Britten’s living descendants

who were 1/16 Pala Indian. (See AR 331, 2097, 2168-2169). The BIA enrollment

specialist from Southern California Agency personally met with the Pala Band’s

“‘Executive Committee’ and provided the committee with (the BIA) findings,

supporting documents, tree charts with correct blood degree.” (AR 2173, ¶10).

In United States v. Utah Construction & Mining Co., supra, 384 U.S. 394, 398,

the issue was similar to the Plaintiffs’ case. That case involved a provision that stated

“all disputes concerning questions of fact arising under this contract” shall be decided


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by the contracting officer subject to written appeal to the head of the department,

“whose decision shall be final and conclusive upon the parties thereto.”

The record establishes that from 1985-1989, Margarita Britten’s descendant,

Cheryl Majel, appealed the EC’s decision rejecting her membership application for

enrollment on the basis that the EC questioned whether Majel’s ancestor, Margarita

Britten, was 4/4 Pala Indian. (AR 2164-2166). The record establishes that under the

Pala Band’s original enrollment ordinance no. 1, Section 5, Appeals, the AS-IA’s

decision was final and conclusive. (AR 2118). Margarita Britten’s blood quantum

was finally decided by the AS-IA in September 1989. (AR 2168-2169). The letter

notifying the Band sets forth the evidence relied upon to conclude Margarita Britten

is 4/4 Indian and states:

You submitted no documentation with your letter which would have proventhat the Assistant Secretary’s decision was erroneous....That decision,therefore, is final....The issue of Margarita Britten’s blood degree has beendecided. Id. at p. 2169.

Plaintiffs’ names were ordered placed on the federally approved roll entitling them to

Native American benefits based on their membership in a federally acknowledged

Indian tribe on a federally approved roll. See 25 U.S.C. Section 479. Under well

established department policy: “[T]hat final decision by the Assistant Secretary in

1989 must be honored as ‘final’ between the government and the Band.” (AR 94, ¶

20).

The AS-IA acknowledges that the Band continues to challenge the

Superintendent’s 1985 decision which was overturned by the 1989 AS-IA decision.

(AR 6). The issue of Margarita Britten’s blood quantum and name of her father,

Peligrino (Saubel) Ortega, was adjudicated. (AR 2166). The basis of the AS-IA’s

1989 decision was discussed repeatedly with the Band’s EC. (AR 2168-2169, AR

2173, ¶10). The EC could have legally presented evidence and challenged the 1989

final AS-IA determination of Margarita Britten’s 4/4 blood quantum under the APA,

5 U.S.C. §§ 701-706, but the EC did not. The Aguayo appellants are in privity with


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the 1989 applicant, Cheryl Majel, who appealed the EC’s denial of Margarita

Britten’s blood quantum because the Plaintiffs are descendants of Margarita Britten.

The agency record establishes that the EC had privity with the Band. Section 5 of the

Band’s original enrollment ordinance required “the Executive Committee” to review

and approve membership applications involving blood quantum. (AR 2118).

The AS-IA’s September 1989 final decision was issued long after the U.S.

Supreme Court decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

Here, there was a process and forum to challenge the correctness of the AS-IA’s

decision available. The 1989 AS-IA decision could have been legally challenged

under the APA. It was not. The AS-IA’s decision became binding and conclusive

pursuant to the Band’s governing documents. (AR 2118, § 5). The EC’s failure to

take any further action created a final, nonappealable order by operation of law. See

28 U.S.C. Section 2401a. A losing party cannot obstruct the preclusive use of a final

administrative decision simply by foregoing the right to appeal. Cf., Murray v.

Alaska Airlines, Inc., 50 Cal.4th 860, 877 [237 P. 3d 565] (2010) [applying a

preclusive effect to a state administrative decision]; see also, Miller v. County of

Santa Cruz, 39 F. 3d 1030, 1038 (9th Cir. 1994) an unreviewed agency determination

is equivalent to a final judgment entitled to res judicata and collateral estoppel effect.

“Any other result would render the administrative forum a place for meaningless dry

runs.”

When an administrative agency acts in a adjudicatory capacity and resolves

disputed issues of fact properly before it which the parties have had an adequate

opportunity to address, courts have not hesitated to apply res judicata and collateral

estoppel principles. See Plaine v. McCabe, supra, 797 F.2d 713, 720. This is not just

agency policy; the collateral estoppel doctrine applies as a matter of law. The Band

does not have a sovereign right to relitigate factual issues that were legally decided

and have become binding between governments. If issue preclusion did not apply,

Indian tribes around the nation could ignore final binding agency decisions and


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2 Section 479 provides: “[T]he term ‘Indian’... shall include all persons ofIndian descent who are members of any recognized Indian tribe now under Federaljurisdiction.”

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treaties and continually reopen issues long since concluded. Likewise, AS-IA

Washburn cannot ignore the legal effect of the final 1989 AS-IA decision which is

binding on his office in his official capacity. If this were true, final agency decisions

could routinely be changed when a new administration is in office and at the whim of

the office holder.

Furthermore, Plaintiffs’ status as enrolled members flows because they are

federally recognized tribal members subject to certain federal benefits as a result of

their Indian status on the federally acknowledged roll. Indian status, for purposes of

Native American benefits is dependent upon being recognized as a member of an

Indian tribe on a federally approved roll. See 25 U.S.C. § 479.2 With regard to the

relationship between a tribal government and an applicant for enrollment, all federal

duties flow toward the tribal government. However, the rights of federally

recognized tribal members invoke an entirely different set of relationships. There is a

distinctive obligation of trust incumbent upon the Government in its dealings with

recognized Indian tribal members. See Seminole Nation v. United States, 316 U.S.

286, 296 (1942). In Plaintiffs’ case, the AS-IA has a trust responsibility to honor the

final agency decision because Plaintiffs became federally enrolled tribal members

pursuant to the final 1989 decision. As a matter of federal common law, the final

agency decision must be upheld and honored by the AS-IA.

II. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION THAT 28 U.S.C. SECTION 2401a THE 6-YEAR STATUTE OF LIMITATIONS APPLIES.

The AS-IA’s finding that the federal statute of limitations began to run on

October 4, 2000 is arbitrary and capricious since there was no evidence that

individual Plaintiff tribal members had notice of the BIA’s “retroactive” approval.

The AS-IA’s decision therefore failed to adequately explain the rationale underlying


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its finding that the statute of limitations began to run on October 4, 2000, or connect

the facts as to when tribal members had knowledge of Regional’s “retroactive”

approval since the October 4, 2000 letter was not addressed to the Plaintiffs.

Moreover, if governing documents are void ab initio, there would be no

prescribed statutory time to challenge them. Action which is void ab initio does not

accrue a statute of limitations period. Cabazon Band of Mission Indians v. City of

Indio, 694 F.2d 634, 637 (9th Cir. 1982) concluding the Cabazon Band was not

required to take action within any prescribed statutory time to establish annexation

invalidity because Indio’s attempted annexation was void ab initio. See also, Nichols

v. Rysavy, 809 F. 2d 1317, 1325 (8th Cir. 1987) “No cause of action could accrue on a

void transaction, and we remanded the case to the district court to determine whether

the sale was in fact void, thus barring the United States’ statute of limitations

defense.”

Additionally, the AS-IA erred as a matter of law because the statute of

limitations issue was decided in Aguayo v. Salazar, et al., Case No.

12-cv-00551-WQH (KSC). The BIA raised 28 U.S.C. § 2401a as a complete

procedural bar in district court but the government’s argument was rejected. The

district court found that the statute of limitations did not bar Plaintiffs’ challenge to

the 1997 Constitution and 2009 revised enrollment ordinance adopted pursuant to the

Constitution. Wind River Mtn. Corp., 946 F.2d 710, 716 (9th Cir. 1991). That ruling

was necessary to the resolution of whether the BIA defendants were entitled to

complete dismissal of the district court case with prejudice. Consequently, the AS-IA

erred as a matter of law in finding the statute of limitations precluded review since the

issue was already adjudicated in district court. Parklane Hosiery Co. v. Shore, supra,

439 U.S. 322, 326.

Notwithstanding, the Plaintiffs’ challenge to the Pala Band’s 1997 Constitution

and the 2009 revised enrollment ordinance accrued when Regional issued its decision

applying the void governing documents against Plaintiffs creating an injury-in-fact.


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The 2009 revised enrollment ordinance derives its authority from the 1997

Constitution. (AR 2149). The 2009 enrollment ordinance was not applied against

Plaintiffs until the BIA Regional interpreted its authority under the void documents.

In Wind River Min. Corp. v. U.S., supra, 946 F. 2d 710, 715, the Ninth Circuit

acknowledged:

....[N]o one was likely to have discovered that the BLM’s 1979 designation ofthis particular WSA was beyond the agency’s authority until someone actuallytook an interest in that particular piece of property, which only happened whenWind River staked its mining claims. The government should not be permittedto avoid all challenges to its actions, even if ultra vires, simply because theagency took the action long before anyone discovered the true state of affairs.

In Plaintiffs’ case, Regional issued its decision on June 7, 2012. Plaintiffs’

claim is not time barred because even assuming Plaintiffs potentially could have

known about the BIA’s approval of the challenged Constitution much earlier,

Plaintiffs would have lacked an “injury in fact” until the EC exercised its authority

under the Constitution, adopted the revised enrollment ordinance, and applied the

governing documents to them and Regional acknowledged the documents as

legitimately enacted. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (the

plaintiff must have suffered an “injury in fact”— an invasion of a legally protected

interest which is concrete and particularized.)

If a challenge contests the substance of an agency decision as exceeding

constitutional or statutory authority, the challenger may do so later than six years.

Wind River Min. Corp. v. U.S., supra, 946 F. 2d 710, 715. “[T]he challenge to the

initial action accrues when an agency issues a decision applying the initial action to

the challenged party.” Conner v. U.S. Dept. of the Interior, 73 F.Supp.2d 1215, 1219

(D. Nev. 1999). This Court should reverse the AS-IA’s decision that the statute of

limitations, 28 U.S.C. § 2401a applies and remand the case with instructions that

Plaintiffs’ challenge to the void enrollment ordinance enacted pursuant to the 1997

Constitution approved by Regional, is not barred as a matter of law.


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III. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION TORECOGNIZE THE PALA BAND’S 1997 CONSTITUTION AS“EFFECTIVELY” ADOPTED BECAUSE THE FINDING ISARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, ANDOTHERWISE NOT IN ACCORDANCE WITH LAW.

This Court may reverse an agency decision under the arbitrary and capricious

standard if the agency has failed to consider an important aspect of the issue.

See Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143, 1148 (9th Cir. 2010).

A. The AS-IA’s finding that assumed “elections” and “meetings” were interchangeably held based on the Band’s past customs and traditions was made without making a factual inquiry and was therefore an abuse of discretion.

The Pala Band never asserted the AS-IA’s decisional finding – that it was the

Band’s custom and tradition to interchangeably vote at general council meetings and

duly called elections to adopt governing documents. Instead, the AS-IA out of

whole-cloth, engaged in a course of speculative reasoning based on inconclusive

evidence. The AS-IA assumed “elections” and “meetings” were interchangeably held.

This Court should set aside the AS-IA decision as arbitrary and capricious because

“the decision was based on inadequate factual support.” Bonnichsen v. U.S., 367 F.3d

864, 879 (9th Cir. 2004).

The AS-IA relied on conjecture to assume that the Band used the terms

“elections” and “meetings” interchangeably in amending its Articles of Association

and adopting the Constitution. (AR 13, 15). In arriving at his conclusion, the AS-IA

failed to make reasonably inquiry and failed to fully consider an important aspect of

the issue. This Court can consider the Declaration of former Pala Chairman King

Freeman with appended meeting minutes, in determining whether the agency

considered all relevant factors. Kettle Range Conservation Group v. U.S. Forest

Service, 148 F.Supp.2d 1107, 1115 (E.D.Wash.2001); Friends of the Earth v. Hintz,

800 F.2d 822, 829 (9th Cir.1986). King Freeman’s declaration establishes that the

AS-IA failed to base his decision on a consideration of all of the “relevant factors”

and instead speculated without making a reasonable inquiry.


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3 The AS-IA cannot arbitrarily ignore relevant probative evidence. This Courtcan review Elsie Lucero’s declaration to determine whether the agency failed toconsider an important aspect of the case. Kettle Range Conservation Group v. U.S.Forest Service, supra, 148 F.Supp.2d 1107, 1115; Friends of the Earth v. Hintz,supra, 800 F.2d 822, 829.

4 Plaintiffs’ Request to Consider Supplemental Evidence including ElsieLucero’s Declaration was made on April 15, 2013, before the AS-IA’s SchedulingOrder was issued. (AR 2609).

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Had the AS-IA made reasonable inquiry, he would have discovered that the

Band’s past customs and traditions required it to hold a “referendum election”

wherein tribal members would have been mailed a copy of the proposed Constitution,

and an election held, wherein all eligible voters could vote by ballots including

absentee ballots. King Freeman states under penalty of perjury that had the BIA

defendants inquired into the custom and tradition in adopting governing documents

which he signed by contacting him to make reasonable inquiry, he would have stated

that the Band’s custom was to hold referendum elections to allow all eligible tribal

members the right to vote on the substantial changes made in the Pala Band’

governing document. (ECF 1-1at 48-51, ¶¶¶ 9, 10, 11, 13, 16, 20).

Here, to arrive at its conclusion, the AS-IA also ignored relevant probative

evidence in Elsie Lucero’s declaration which was before the agency.3 (AR 2606)4.

Elsie Lucero was employed with the Southern California Agency and she stated that

the Band was required to submit an agenda, meeting minutes of an election committee

and rules regarding the election to the agency. She further stated that the term

“election” meant tribal members are allowed to vote in a noticed, balloted election

and recalled that the Band’s Constitution was never ratified. (AR 92-94, ¶¶¶¶¶¶ 10,

13, 14, 15, 16, 21). The AS-IA failed to reasonably explain why he rejected Elsie

Lucero’s declaration after Plaintiffs moved to supplement the evidence and cited it in

their brief. This Court should reverse the AS-IA’s decision and remand the case for

further agency consideration in light of the Declarations of King Freeman and Elsie

Lucero, and the meeting minutes attached.


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5 http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/gamingordinances/palaband/palabandamend041800.pdf

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B. The AS-IA’s finding that the Pala Band “effectively” voted to adoptthe 1997 Constitution is arbitrary, capricious, and an abuse ofdiscretion in light of the Pala Band’s admission to the NIGC, afederal agency in 1999 that it was operating under Articles ofAssociation, and in light of its admission on its public website in 2012that it is governed by Articles of Association.

The AS-IA abused his discretion in finding the Band had effectively adopted

the Constitution in light of the Band’s gaming ordinance, Tribal Resolution 99-39,

passed on October 20, 1999, which was submitted to a federal agency, the National

Indian Gaming Commission (“NIGC”). Tribal Resolution 99-39 is posted on line on

the National Indian Gaming Commission’s website. Plaintiffs asked the AS-IA to

consider it.5 (AR 75, see also fn. 13). Tribal Resolution 99-39 is also part of the

agency record because the Howard tribal appellants submitted it. (AR 361). Tribal

Resolution 99-39 expressly identifies the Articles of Association as the Band’s

governing document, not a 1994 or 1997 Constitution. (AR 75).

The AS-IA also abused his discretion because he failed to state why he was

rejecting evidence of the Band’s public website page which was photographed and

downloaded on February 16, 2012 which stated that “The Tribe is organized under

Articles of Association....” (AR 75, 2091-2092). The Band’s public website page is

particularly relevant probative evidence because it is a public admission which was

well after Regional purportedly approved the challenged 1997 Constitution.

The AS-IA cannot arrive at his decision by ignoring relevant probative credible

evidence which was brought to his attention. The Ninth Circuit has held that the

agency’s “review” cannot be arbitrary and capricious. There must be an explanation

between the facts found and the choice made. Bowman Transp., Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281, 285 (1974); Ranchers Cattlemen Action Legal

Fund United Stockgrowers of Am v. U.S. Dep’t of Agric., 415 F. 3d 1078, 1093 (9th

Cir. 2005) (citation omitted). Consequently, this Court should reverse the AS-IA’s


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6 The difference between a tribal “meeting” and a tribal “election” is notmerely one of semantics. For example, one requirement of an “election” requirespoling places, and absentee ballots. There is no such requirement at General Councilmeetings.

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decision and remand with instructions to the AS-IA to consider this evidence and

explain in a decision why it should be rejected.

C. The AS-IA abused his discretion and reached a conclusion that runs counter to the plain meaning of “Elections,” a term definedseparately from the definition of “Meetings” in the Pala Band’sArticles of Association and the challenged 1997 Constitution.

Agency interpretation of governing documents is analogous to interpretation of

a statute where the plain meaning rule is followed. Under the plain meaning rule,

where the words used in the document have a clear and unambiguous meaning, the

words must be given their ordinary meaning. See Gila River Indian Community v.

U.S., 729 F.3d 1139, 1148 (9th Cir. 2013). The plain meaning rule applies in

interpreting tribal governing documents. See Hopi Indian Tribe v. Commr, 4 IBIA

134, 140-141 (1975) (“[T]he organic law of the Hopi Tribe found in the Constitution

authorized by statute, formulated and adopted by the tribal members and approved by

the Secretary of the Interior should be construed for its ultimate meaning under the

same rules as are applied in the construction of state and federal constitutions and

statutes.”).

Here, the AS-IA abused his discretion and reached a conclusion that runs

counter to the plain meaning of the defined term “elections” in the Pala Band Articles

of Association. (See AR 2098). Indeed, in both the Articles of Association and

challenged 1997 Constitution, there are clearly defined sections with definitions for

“Elections” and “Meetings.”6 The AS-IA abused his discretion and reached a

conclusion that runs counter to the plain meaning of the term “Elections” because an

“Election” with absentee ballots and polling places is clearly defined.

Consequently, this Court should reverse and remand the AS-IA’s decision with

instructions that the AS-IA must apply the plain meaning rule.


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D. The AS-IA abused his discretion in finding “there were two votes onthe adoption of the Constitution.”

The AS-IA abused his discretion in concluding the Pala Band’s 1997

Constitution submitted by the EC was adopted by two General Council meeting votes.

This finding runs counter to the evidence. Under the Articles of Association, there is

a 14 day notice provision. Furthermore, the AS-IA concluded that the Band had

voted at both General Council meetings to adopt the new Constitution without

making a reasonable inquiry. (AR 14, fn. 45). The actual minutes appended to the

Declaration of King Freeman state that at the General Council meeting held on

November 12, 1997, there was only a tribal “announcement” on the Articles of

Association. (ECF 1-1at 50, 64). The November 19, 1997 General Council meeting

would only have been held 1-week after the “announcement.” Therefore, any vote

would not have been passed with the required 14 day notice. Additionally, the

meeting minutes establish that the Band’s EC had been working on revising the

Articles of Association, and at the same time, the EC was working on drafting a

Constitution for the Band. (ECF 1-1 at 50, ¶15).

The drafted Constitution had not been ratified by the Band as a whole. There

was no informed notice to tribal members. In adopting governing documents,

procedures must be “designed to make the vote a meaningful and fully informed one.”

Morris v. Watt, 640 F.2d 404, 415 (D.C.Cir.1981). Thus, even if the term “election”

could be interchangeably substituted for “meeting” (which it could not under the

Band’s custom and practice,)“[a]ll General Council meetings (whether general or

special) to be recognized” had to be publicly noticed for fourteen (14) days.” (ECF

1-1, p. 18). The AS-IA’s explanation that there were two majority votes held to adopt

the Constitution runs counter to the evidence before it and must be reversed.

Notwithstanding, the BIA violated its trust responsibility because the AS-IA

failed to make inquiry and consider that the 27 member vote was not a majority of

tribal members in 1997. To do so, it had to ignore the Declaration of Elsie Lucero


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who stated that she was responsible for the Pala Band’s membership while employed

with Southern California Agency. In 1997, 27 votes was not a majority of the eligible

adult voters. (AR 92, ¶ 12). As noted by the Court of Appeal in California Valley

Miwok Tribe (CVMT II) v. United States, 515 F. 3d 1262, 1267 (D.C. Cir. 2008), the

Secretary, relying on Seminole Nation v. United States, supra, 316 U.S. 286, to

provide authority for the government’s trust responsibility, held that the Secretary

appropriately rejected the Tribe’s constitution. The court reasoned that a cornerstone

of the trust responsibility obligation is to promote a tribe’s political integrity, which

includes ensuring that the will of tribal members is not thwarted by rogue leaders

when it comes to decisions affecting federal benefits. Id. at 296.

In CVMT II, the Tribe, by its own admission, had a potential membership of

250. Only tribal member Burley and a small group of her supporters had a hand in

adopting her proposed constitution. The appellate court concluded “[T]his

antimajoritarian gambit deserves no stamp of approval from the Secretary.” Id. at pp.

1267-1268. Recently, the district court in California Valley Miwok Tribe v. Jewell,

--- F.Supp.2d ----, 2013 WL 6524636 (D.D.C. 2013) reversed the Assistant

Secretary’s decision as an abuse of discretion and reiterated the government’s duty of

trust as follows:

[S]ince at least 1831, Congress and the Supreme Court have acknowledged theexistence of a trust relationship between the United States and Indian tribes.(Citation) Indeed, the Supreme Court’s decisions, and nearly every piece oflegislation dealing with Indian tribes over the past century, have repeatedlyreaffirmed that the federal government has a “distinctive obligation of trust” inits dealings with Indians. (Citations omitted.)

Similarly, here, the AS-IA seeks to rubber stamp a Constitution that was

worked on for two years by the EC and submitted to the BIA by a vote of a small

minority (27 tribal members) without evidence that there was a meaningful and fully

informed vote. In doing so, the AS-IA ignores his trust responsibility and the plain

meaning of the word “election” in Article IX of the Constitution as follows:

This Constitution shall become effective immediately after its approval by a


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majority vote of the voters voting in a duly called election at which thisConstitution is approved by the Bureau of Indian Affairs.

The BIA maintains the “official rolls” of federally approved tribal members,

including those of the Pala Band. The BIA should be required to advise this Court

under oath by declaration exactly how many adult voting members were eligible to

vote in November 1997. Plaintiffs do not have access to this evidence or they would

have produced it as an exhibit for the Court. However, Elsie Lucero, the BIA’s

employee who was in charge of reviewing membership applications and rolls for the

Pala Band states that 27 votes was not a majority of the eligible voting tribal

members. (AR 92, ¶ 12).

The AS-IA’s June 12, 2013 decision does not negate Plaintiffs’ claims that the

27 General Council votes did not constitute a majority of the enrolled eligible adult

voting members in the Band in 1997. Elsie Lucero states that Tribal Resolution

97-36 would be interpreted as a “vote” of approval to send the Revised Constitution

to the Southern California agency director for review and comments. (AR 93, ¶17).

Accordingly, the AS-IA failed to make reasonable inquiry into relevant factors and

failed to articulate a rational connection between the facts found and the choice made.

“Tribal sovereignty is dependent on, and subordinate to...the Federal

Government.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207

(1987). Under the broad authority in 25 U.S.C. Section 2, Congress has expressly

vested in the Bureau of Indian Affairs the authority for the “management of all Indian

affairs and of all matters arising out of Indian relations.” Seminole Nation of Okla. v.

Norton, 223 F. Supp. 2d 122, 138 (D.D.C. 2002) (discussing Milam v. United States

Dept of Interior, 10 I.L.R. 3013, 3015 (1982)). “The Secretary of the Interior is

charged not only with the duty to protect the rights of the tribe, but also the rights of

individual members.” Milam v. United States Dep’t of Interior, supra,10 I.L.R. 3013,

3017, emphasis added. When the federal government engages in

government-to-government relations with a tribe, it must ensure that it is dealing with


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a duly constituted government that represents the tribe as a whole. Morris v. Watt,

supra, 640 F.2d 404, 415 (noting that tribal governments must “fully and fairly

involve the tribal members”).

The agency’s enforcement of a void enrollment ordinance against tribal

members enacted pursuant to authority which was never granted by the Band as

whole violates the government’s management and trust responsibility to enrolled

tribal members. See, e.g., Seminole Nation, supra, 316 U.S. at 296 (noting the

“distinctive obligation of trust” the federal government has with respect to Indian

tribes); CVMT II, 515 F.3d at 1267 (noting that the exercise of the Secretary’s

authority to manage all Indian affairs is especially vital when the receipt of significant

federal benefits is at stake). A fundamental principle is that enforcement of tribal

governing documents requires consent of the governed. Here, the AS-IA abused his

trust management obligation by actively sanctioning Regional’s “retroactive”

approval of a 1997 Constitution when it was not adopted by the majority of the tribe’s

eligible voting members. See Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1475

(9th Cir. 1989) (“in some cases enforcement of a tribe’s ordinance against its own

members may raise federal issues of tribal power”).

IV. THE 2009 REVISED ENROLLMENT ORDINANCE CANNOT BE APPLIED TO PLAINTIFFS UNDER THE PLAIN MEANING RULE AND AS A MATTER OF LAW.

The AS-IA abused his discretion by concluding the Pala Band’s 2009 revised

enrollment ordinance only authorizes the BIA to make “recommendations” and

failing to accept the plain meaning of the WHEREAS clause. The WHEREAS clause

states that the 2009 revised enrollment ordinance did not intend to alter or change the

membership status of individuals whose membership has already been approved and

who are currently listed on the membership roll of the Pala Band of Mission Indians.

The plain meaning rule applies. Gila River Indian Community v. U.S., supra, 729

F.3d 1139, 1148; Hopi Indian Tribe v. Commr, supra, 4 IBIA 134, 140-141. Thus,

even if the Band’s six-member EC had authority to adopt the revised 2009 enrollment


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ordinance, it would not by its plain language, apply retroactively to Plaintiffs who

were already enrolled members on a federally approved tribal roll subject to Native

American recognition by the federal government on the date of adoption.

The AS-IA’s decision also fails to explain why he rejected Elsie Lucero’s

statement that the enrollment ordinance cannot be interpreted by the BIA against

federally enrolled tribal members who were enrolled on July 22, 2009 because it was

agency protocol for the agency’s final decision in 1989 to be recognized as final.

Consequently, the AS-IA’s finding that the WHEREAS provision does not control

should be reversed. This Court should instruct the AS-IA that as a matter of law, the

plain meaning rule must be followed.

V. THIS COURT SHOULD SET ASIDE THE AS-IA’S DECISION TO REJECT JOINDER OF MINORS JOSEPH AND KALEY RAVAGO AS PARTIES IN THE AS-IA DECISION BECAUSE THEY ARE SIMILARLY SITUATED AND THE AS-IA’SDECISION IS ARBITRARY.

A copy of the Ravago Notice of Appeal was served on AS-IA Washburn,

Pacific Regional Office and the Pala Band. (AR 68, 88). The minors’ mother,

Patricia Walsh is a Plaintiff in this case. (ECF 1 at 1). The minors’ appeal is based on

the same issues except the EC took formal action against them approximately 1 year

later. Therefore, although Plaintiffs filed an appeal with Regional in February 2013,

Plaintiffs moved that they be joined in the AS-IA’s decision since they were similarly

situated. (AR 68). Further, neither the Band nor Regional specifically lodged an

objection to the AS-IA joining the Ravago minors who are similarly situated. (See

AR 30-38, 100-108, see also 2642). Where the record belies the agency’s conclusion,

the district court has the responsibility to undo agency action. See, Petroleum

Communications, Inc. v. F.C.C., 22 F.3d 1164, 1172 (D.C. Cir.1994).

This Court should remand the decision back to the AS-IA with instructions that

the Ravago minors should be included in any orders involving the Plaintiffs.

/ / /


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CONCLUSION

As emphasized, the AS-IA’s decision is arbitrary, not in accordance with the

law, and does not articulate a rational connection between the facts found by the AS-

IA and the conclusions made. The AS-IA failed to make a reasonable inquiry and has

failed to give documents their plain meaning forcing Plaintiffs to litigate every step of

the way. This Court should reverse the June 12, 2013 AS-IA decision and remand

with specific instructions that apply as a matter of law. Additionally, this Court

should require the Assistant Secretary upon review of the Court’s instructions, to

issue a new decision within a reasonable time by a date certain.

DATED: January 10, 2014. Respectfully submitted,

s/ Thor O. Emblem Attorney for Plaintiffs

E-mail: Thor@ emblemlaw.com


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